In a Green Paper, 'Shaping the Future of Care Together',
the Health Secretary Andy Burnham has invited everyone to join the
'Big Care Debate' on what a 'National Care Service'
should look like and how adult social care should be paid for, with
a consultation which is open until 13 November 2009. Whatever the
outcome, it will have profound implications for all providers and
commissioners of health as well as social care.

Entitlement to care services?

The Green Paper says that every adult should be able to
expect:

Preventative services – keeping
people independent and well for as long as possible

National assessment – an assessment
process which is consistent throughout England

Joined up services – a system where
all services work together smoothly

Clear information and advice – a
care system that is easy to understand and navigate

Personalised care and support - services that
are based on personal circumstances and need

But the real focus of the proposals is on how this care should
be funded, and this issue has dominated the headlines.

Funding of care and support?

The Green Paper seeks to guarantee 'fair' funding of
care services for everyone, making sure money is spent wisely and
everyone will get some help meeting the high cost of care.

There are three key proposals for funding the National Care
Service:

Partnership - the cost of care would be shared
between the government and each person who has care needs, with the
government providing between a quarter and a third of the cost
(more for people on a low income)

Insurance – the same as
'partnership', but making it easier to take out insurance
to cover care costs (the estimated cost of insurance will be
£20,000 to £25,000)

Comprehensive – effectively making
top up insurance compulsory, so everyone who can afford it would
pay into a state insurance scheme

The problem is that this focus on funding means that some
fundamental questions may be overlooked.

Where does social care stop and health care start?

The dividing line between healthcare and social care is often
unclear, but it is critically important while health care is free
of charge but social care is not (and will not be, whatever funding
model is adopted).

This fatal combination of a vital but obscure distinction
inevitably leads to lots of confusion, complaints and litigation.
For all the emphasis on the need for 'joined up' service
provision, the Green Paper does not take the chance to tackle this
issue head on. Instead, the Green Paper's focus is on care and
support.

"The activities, services and relationships that help
people to stay as independent, active, safe and well as possible,
and to participate in and contribute to society throughout the
different stages of their lives".

It accepts that there are significant variations in the standard
and quality of care and support offered by different local
authorities, and implicitly recognises that the lower the standards
of quality and care offered by a particular local authority, the
higher the likely demand for NHS services in that area.

The law

With its focus on reforming the funding model, the Green Paper
has not taken the opportunity to address the underlying statutory
framework for entitlement to care, which remains the
"confusing patchwork of conflicting statutes enacted over a
period of 60 years" described in the Law Commission's
scoping report on adult social care published in December 2008. The
Green Paper only mentions this report briefly, when it could have
contemplated a coherent and comprehensive reform of the piecemeal
and labyrinthine law in this area.

Expectations and entitlement

The Green Paper emphasises 'choice' and
'entitlement', echoing the recent policy approach to
delivery of healthcare, and the language of the NHS Constitution.
Our experience is that this consumerist approach can, and will,
have consequences for service user expectations, invariably
increasing complaints and litigation.

The future?

As public service budgets tighten, and public expectations rise,
there will be more pressure than ever on the issues of entitlement
to care and funding. Complaints and litigation will increase across
health and social care. The extremely complex and piecemeal law
underpinning entitlement to social care, and the lack of clarity
over the vital distinction between health and social care, can only
be good news for the lawyers making a living from these disputes.
While the funding model needs to be addressed, these underlying
issues are far too important to be left as such a grey area.

The government encourages everybody to take part in the Big Care
Debate. It recognises that those on the front line of care and
health services delivery have a huge part to play. Browne
Jacobson's health and social care team is considering a
response to the consultation and would very much welcome your views
on the opportunities and challenges the Green Paper raises.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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